Authored by Robert Whitman


Addressing two critical issues raised by the current onslaught of “off-the-clock” litigation, the Second Circuit has held unambiguously that an employee’s commuting time is not compensable as part of his “continuous workday,” even if he performs work-related tasks before commuting to work in the morning or after arriving home at night.  The court also held that employees can survive summary judgment on claims of unpaid overtime where they produce sufficient evidence – including from their own testimony – for a jury to make a reasonable inference as to the number of unpaid hours.

The plaintiff in Kuebel v. Black & Decker was a Retail Specialist whose primary job function was to visit Home Depot stores to set up and monitor displays of Black & Decker (“B&D”) products and assist store employees in selling B&D’s products.  He alleged that he performed a variety of work tasks at home each morning and evening, such as checking emails, syncing a company-issued PDA, reviewing sales reports, and preparing retail store displays.

Kuebel claimed not only that he was entitled to be paid for this work-at-home time, but also that his performance of these tasks had the effect of starting the clock on his work day each morning, and that the clock did not stop running until his completion of the final task every evening.  The upshot of his theory was that his time spent commuting from home to a store, and driving back home, was compensable work time.

The court emphatically rejected that theory.  In no uncertain terms, it said:  “The fact that Kuebel performs some administrative tasks at home, on his own schedule, does not make his commute time compensable any more than it makes his sleep time or his dinner time compensable.”  While the tasks he performed at home may have been necessary to his job, the court held, there was no evidence that he was required to perform them “immediately before leaving home, or immediately after returning home.”

Putting a finer point on it, the court said:

Indeed, there is nothing in the record to suggest that a Retail Specialist could not, for example, wake up early, check his email, synch his PDA, print a sales report, and then go to the gym, or take his kids to school, before driving to his first Home Depot store of the day; nor was Kuebel prevented from leaving his last store of the day and going straight to a restaurant for dinner, or waiting until late at night to synch his PDA (as electronic records show he sometimes did).  That Kuebel may have frequently chosen to perform his at-home activities immediately before and after his commutes does not mean that B&D must pay him for the first hour of those drives—time that was not part of his continuous workday and that was, in the end, “ordinary home to work travel” outside the coverage of the FLSA.

The court’s resolution was less favorable for B&D on the issue of unpaid overtime.  Kuebel alleged that he frequently worked more than 40 hours per week, but failed to record those hours because of pressure from supervisors.  Although he had no record of these additional hours, the court held that, through estimates in his summary judgment declaration based on his own recollection, Kuebel presented sufficient evidence for a jury to infer the precise number of allegedly unpaid hours.  As such, the court reversed summary judgment to B&D on that point.  The court also reversed summary judgment on the issue of whether B&D knew or should have known that Kuebel was working unpaid overtime (based on his testimony that he complained to his supervisor about it), and on whether B&D acted willfully (based on Kuebel’s testimony that he was told by management not to record his overtime hours).

While Kuebel is something of a mixed bag for employers, it teaches at least two important lessons for employers attempting to grapple with the growing number of “off-the-clock” claims:

  • Attempts to transform commuting time into “work time” based on occasional performance of work-related tasks at home will be soundly rejected; and
  • Employers must promulgate and enforce strong rules against any kind of “off-the-clock” work, in part by making clear to employees that all work hours by non-exempt employees must be recorded and that any supervisor’s suggestion otherwise is contrary to company policy.